The Supreme Court of Canada is expected to rule at any time on the case of Nelson Lloyd Hart, who was the target of a Mr. Big sting following the drowning deaths of his twin daughters.

Legal observers are eagerly awaiting a Supreme Court of Canada decision that could rewrite the rules for “Mr. Big” stings, the controversial undercover police operations designed to draw confessions from suspects.

In the past, the country’s highest court has dealt only with narrow legal issues arising from these cases, experts said. Now, it is being asked to consider directly whether the elaborate stings — which, critics say, are “breeding grounds” for potential false confessions — should be used by police and their results used in court.

“All these arguments are coming to a head. They’ve been sort of nibbled at in other courts, but this is the big showdown,” said Toronto criminal lawyer Russell Silverstein, a director of the Association in Defence of the Wrongly Convicted.

In a Mr. Big operation, officers posing as members of a criminal organization befriend the suspect — typically a murder suspect — and then gain the suspect’s trust with money, booze and companionship. They get the suspect to carry out jobs for the group and slowly involve him in staged criminal acts, such as money laundering and drug trafficking.

Eventually, a meeting is set up with the group’s boss, Mr. Big, designed to get the suspect to cough up details of a past crime. The suspect might be told that police are onto him and he needs to tell the boss everything. Or the suspect could be told he needs to share his past because it’s the only way the organization can ensure his loyalty.

Developed by the RCMP in B.C. in the early 1990s, the Mr. Big technique is successful because it offers an environment where suspects “feel comfortable” disclosing past activities, the Mounties have said. In 75 per cent of operations, a person of interest is either cleared or charged. All operations undergo extensive planning and review.

Various legal challenges have tried to argue that confessions from Mr. Big stings are unreliable because of the level of inducement and coercion.

But the arguments have generally failed because courts have said key protections — such as the constitutional right to remain silent or the common law rule that says confessions must be voluntary in order to be admissible — apply only in cases where a suspect was in detention and confessed to a person he believed to be a person of authority, such as a cop.

This legal loophole has allowed Mr. Big operations to skirt legal protections and given police leeway to use all sorts of ploys to get confessions, said Timothy Moore, chair of psychology at York University. “There’s nothing they won’t do to try to get their psychological hooks into their target.”

Several groups, such as the Canadian Civil Liberties Association and the Criminal Lawyers’ Association of Ontario, jumped in as interveners in the case now before the Supreme Court of Canada to try to persuade the court to close the loophole. A decision could come any time.

“If the court is reluctant to make a rule that undermines the use of the technique completely, it can set criteria for how judges decide whether a particular instance of Mr. Big has yielded reliable evidence,” said Philip Campbell, a criminal lawyer in Toronto.

The case centres on Nelson Lloyd Hart, convicted in 2007 in Newfoundland of two counts of murder in the drowning deaths of his twin three-year-old daughters.

Hart, who has a Grade 5 education and was living on social assistance, was the target of a four-month Mr. Big sting. Officers pretending to be part of a criminal gang befriended Hart and assigned him to be a courier for the group. They paid him $16,000 cash, put him up in fancy hotels and fed him nice meals. Hart came to view them like “brothers.”

When it came time to meet the group’s boss, Hart initially denied involvement in his daughters’ deaths, insisting he had suffered an epileptic seizure — the same story he had originally told police. But the boss refused to accept Hart’s answer, repeatedly telling him, “Don’t lie to me.”

Hart changed his answer and said he had drowned his daughters because he was worried his brother would gain custody of them.

In 2012, a majority of the Supreme Court of Newfoundland and Labrador’s Court of Appeal overturned Hart’s conviction, questioning the reliability of his confession. The Crown appealed to the Supreme Court of Canada.

In written submissions, Crown prosecutor Frances Knickle reminded the top court it had previously found that a person targeted by a sting operation is “not in the control of the state.”

She argued that Hart was never subjected to coercion or fear and cited the trial judge’s statement that there was “nothing to indicate that Mr. Hart was attempting to get out of the organization. … To the contrary, Mr. Hart continued to show his willingness to become more involved and to take greater risks.”

James Martin and Natasha Thiessen, lawyers for the Public Prosecution Service of Canada, another intervener in the case, argued that undercover work is necessary to detect serious threats and uncover heinous crimes, and that the technique has resolved almost 100 murders.

“Those who have hidden their murderous crimes for years from even those closest to them, seldom approach police officers to confess,” they wrote, reminding the court that it once described the Mr. Big technique as “skilled police work.”

Hart’s lawyers, Robby Ash and James Merrigan, replied that the degree of state control over Hart was comparable to being in detention; thus, protections against self-incrimination should’ve kicked in.

They said Hart’s confession came after “significant psychological coercion.” When Mr. Big refused to accept Hart’s explanation that the death of his daughters was an accident, his choice was clear.

If he stuck to his original story, he risked serious injury or death, or, at best, “crushing poverty and social isolation” and renewed heat from the police. “If he lied and ‘admitted’ to the ‘murder’ his current lifestyle would continue and even improve.”

Police actions were so egregious at one point that they would “shock the community,” the lawyers added. After witnessing Hart suffer a seizure one day, police — bent on getting a confession — continued to have Hart perform his role as a driver for the group, putting public safety at risk, they said.

The RCMP declined comment, citing the ongoing court case.

dquan(at)postmedia.com

Twitter.com/dougquan

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Here is a partial transcript from Nelson Hart’s encounter with Mr. Big:

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